Rule 56(c), by its plain language, mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the non moving party will bear the burden of proof at trial on a dispositive issue which is the subject of a summary judgment motion, the non moving party is required by Rule 56(c) to go beyond the pleadings and by affidavits, answers to interrogatories, depositions, or admissions on file, identify specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The moving party does not bear the burden of negating the opponent's claim. Celotex, 477 U.S. at 323. Rather, the moving party need only "point out" to the trial court that there is an absence of evidence to support the non moving party's claim. Celotex, 477 U.S. at 325.

The standard for granting summary judgment mirrors that for a directed verdict under FED. R.Civ.P. 50(a). The trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to a verdict. See Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of a mere scintilla of evidence in support of the non moving party's position is not sufficient to withstand the motion. There must be evidence from which a jury could reasonably find for the non moving party. The trial judge must determine whether reasonable jurors could find that the non moving party would be entitled to a verdict on the basis of the evidence presented. Anderson, 477 U.S. at 254.

III.

One who asserts the existence of an agency relationship has the burden under Pennsylvania law of proving it. See Scott v. Purcell, 490 Pa. 109, 415 A.2d 56, 60 n. 8 (1980).

Agency principles apply to physicians and hospitals. See Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974). Such agency, if it exists, may be either actual or ostensible.

Plaintiffs must show that Harborside Hospital either controlled or had the right to control the physical conduct of Dr. Philpott in the performance of his work in order to establish that Dr. Philpott was the actual agent of Harborside Hospital. See Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870, 874 (1984).

Plaintiffs have not met their burden of coming forward with evidence which would support the inference that Dr. Philpott was the actual agent of Harborside Hospital during the period of time relevant to this action. Plaintiffs appear to concede as much in their Brief in Opposition, where they do not argue that there was an actual agency relationship.

Indeed, what evidence there is on the matter overwhelmingly indicates that Dr. Philpott was not the actual agent of Harborside Hospital. The only contract in evidence indicates that the relationship between Harborside Hospital and Dr. Philpott was that of landlord/tenant rather than principal/agent.

In general, a hospital is not liable for the negligence of independent contractor physicians. There is, however, an exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital. See Simmons, 481 A.2d at 874.

In order to establish that Dr. Philpott was the ostensible agent of Harborside Hospital, plaintiffs must show: 1) that Mrs. Jones looked to Harborside Hospital, rather than to Dr. Philpott, for care; and 2) that Harborside Hospital held out Dr. Philpott as its agent or employee. See Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647, 649-50 (1980).

Plaintiffs also have failed to come forward with evidence from which it could reasonably be inferred that Dr. Philpott was the ostensible agent of Harborside Hospital.

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